COMMITTEE ON CIVIL PRACTICE LAW AND RULES

MINUTES OF THE MAY 4, 2001 MEETING AT THE N.Y.C. BAR ASSOCIATION,

NEW YORK, NY

MEETING called to order at 12:28 p.m.

PRESENT: Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, Maurice Chayt, David Commender, Joe Einstein, David L. Ferstendig, Matthew R. Kreinces, Jim Gacioch, David Hamm, John J. Jablonski, Ron Kennedy, Robert P. Knapp, III, and Harold B. Obstfeld.

1.         Affirmative Legislation Proposals of the CPLR Committee

a.    Notice of Subpoena- CPLR 2303. Our proposal stated that it applied to subpoena duces tecum and to witnesses. When it was sent to other committees, there was some objection to this. Therefore, it was rewritten to apply only to Subpoena Duces Tecums and not to witnesses. The redrafted bill was sent to the OCA Advisory and they liked it. This will be submitted to other committees and to the Executive Committee in June.

b.    Pretrial Orders and Court Conferences- Our proposal passed the CPLR section of the Commercial and Federal Litigation Committee but failed in the section as a whole. Steve said we should still push for approval since it’s a good proposal. Paul Aloe stated that some judges felt the proposal created restrictions on them but this shows a misinterpretation of the proposal. It still give discretion to the judge. We should stay the course.

c.   Summary Judgment Proposal- Joe Einstein gave a short history of the proposal. The new proposal allows the plaintiff on notice to defendant and with permission of the court, make a motion for summary judgment before the defendant answers. Sharon questioned whether the proposal was practical since the plaintiff can accomplish the same thing by waiting for an answer and being tough on dates. Paul Aloe pointed out that under current law the plaintiff has to wait until the answer is served which can be delayed for a long time. Joe pointed out that in New York County, a defendant can get an automatic 20 day extension and then move to dismiss the complaint. This could delay the submission of an answer by 5-6 months. The proposal addresses this issue.

MOTION- SHOULD THE NEW PROPOSAL BE APPROVED?

Passed 11 yes, 1 no and 3 abstentions.

d.   Status Report on proposed amendment to CPLR 7502(a)- Paul explained the proposal and its history. A judge in Nassau County has taken the position that all cases in Nassau that do not meet the venue provisions of CPLR 7502(a) are dismissed without prejudice with the right to bring them in the right county. The insurance lawyers have pointed out that this is a venue statute and usually if a case is brought in the wrong place and there is no objection by the respondent, the case stays where it is. Senator Skelos, our friend, has insurance companies in his district and wants this fixed. We have worked out a compromise to state that if the case is brought in the wrong district and no objection is made, the respondent has waived his right to object.

1.      New Business

a.       Review of OCA Proposals for 2001.

1.      Conduct of Depositions- This provides that there are to be no objections except for privileged matters. It tracks the federal rules.

MOTION- SHOULD WE APPROVE THE PROPOSAL?

Majority of the committee is in favor of the proposal with 2 objections.

2.      Simplifying Procedures for Use of Non-Party Business Records.- The trial lawyers have objected to this because some stuff in medical records are inaccurate and objectionable.

MOTION- SHOULD WE APPROVE THE PROPOSAL?

Unanimously approved.

3.      Disclosure of Surveillance Evidence- this provides that such evidence is to be disclosed only after the deposition has been held. Sharon stated that our proposal was better because it allows disclosure of tapes if a fair opportunity for a deposition is given. Therefore we should not approve the bill.

MOTION- SHOULD WE APPROVE THE PROPOSAL?

Approved by the committee with one objection.

4.      Setting a timeframe for Expert Disclosure- It provides for disclosure 60 days before trial, unless the court orders otherwise. If not provided, the party is precluded.

MOTION- SHOULD WE APPROVE THE PROPOSAL?

Unanimous against the proposal.

5.      Expanding Expert Disclosure in Commercial Cases- This will allow in commercial cases exceeding $250,000 for discovery of an opponent's expert without a showing of special circumstances as currently required. It was felt that the proposal could be abused by well financed companies.

MOTION- SHOULD WE DISAPPROVE THE PROPOSAL?

Vote- 8 Yes to disapprove the proposal, 4 No to approve the proposal. The Committee therefore votes against the proposal.

6.   New Technological Developments Affecting Admissibility of Medical Diagnostic Tests in P.I. Cases- The proposal would amend CPLR 4532-a in order to take in all medical technology so as not to have to rewrite the statute every time a new technology is discovered. Objection was made to the language since graphic and pictorial is not corrected. Objection was also made to part 2 which requires a party to show to the other party 10 days before trial the exhibit if it has not been previously examined by the other party. The Committee decided to object to the proposal as written. Matthew R. Kreinces is to do a rewrite of the statute.

 7.     Accelerating Access to Medical Records- It amends sections 17 and 18 of the Public Health Law to accelerate the release of medical records. They must respond in 15 days of receipt of the written request and must produce the records within 10 days of receipt of payment. Paul Aloe said it does not amend the CPLR so we should not deal with it. Steve agreed so the committee did not take a position. Later, the committee approved a resolution to appoint a subcommittee to review the proposal.

 8.     Elimination of the Deadman's Statute- CPLR 4519- The committee did not take a position.

 9.    Adoption of the Learned Treatise Rule- The majority of the committee- 9 members opposes the proposal.

10.     Admissibility of Electronically Stored Business Records- Steve said this was a good idea. It unanimously passes the committee.

11.  Extra- State Service of a Subpoena Upon a Party, Wherever Located- The majority of the committee opposed the legislation and was in favor of Paul Aloe's report.

12.  Plaintiff's Recovery Against a Third-Party Defendant Where the Third Party Plaintiff is Insolvent- A vote was taken with 11 against the proposal and 4 for the proposal. The Committee took the position in favor of David Hamm's report.

13.  Prompt Payment Following Settlement- Steve said he will appoint a person to write a report on this. When the report is finished, it will be put on the list serve and if no objection, it will be considered approved.

14.  Contempt- There was some discussion as to whether this was outside our jurisdiction. Paul moved to have a subcommittee appointed to review the proposal. This passed with 11 in favor.

15.   Clarifying Pleadings in an Article 78 Proceeding-

MOTION- SHOULD WE DISAPPROVE THIS PROPOSAL?

Proposal disapproved by a vote of 10 Yes, 1 No and 1 Abstention.

                              16. Eliminating Requirement that Leave to Replead be Requested in Opposition Papers-

MOTION- SHOULD WE DISAPPROVE THIS PROPOSAL?

Proposal disapproved 8 Yes, 2 No and 3 Abstentions.

17.  Clarifying Plaintiff's Options When, in a Case Involving Multiple Defendant, One Defaults and One or More Answers-

       No position taken. This and the remaining proposals will be subject to a telephone conference.

A motion to adjourn the meeting was made and seconded. The meeting adjourned at 3:03 p.m.

Kim Steven Juhase, Secretary